Fixing Copyright: The Purpose Of Copyright

from the holding-the-debate dept

Since the GOP decided to chicken out on holding the very necessary debate on copyright reform, let's keep the debate going without them, and hope they join in. As we've discussed, the Republican Study Committee released a fantastic report from staffer Derek Khanna, and then retracted it under lobbyist pressure. The RSC wants to claim that the paper didn't go through its full review process, but we've heard from multiple sources that this is simply not true, and that the RSC is pushing this story to appease angry lobbyists (apparently the US Chamber of Commerce has taken over as the leader of the cause on this one, following the initial complaints from the MPAA and RIAA). Either way, all this has done is draw much more attention to the report, which you can still read here.

But, clearly, some in Congress realize this is a debate worth having. So if they're too afraid of some industry lobbyists, we might as well kick off that debate for them. We're going to do a series of posts digging into Khanna's paper. The paper, of course, starts off by debunking three commonly believed myths concerning copyright law, which are often used by policy makers to justify bad policies.

The purpose of copyright is to compensate the creator of the content:
It's a common misperception that the Constitution enables our current legal regime of copyright protection -- in fact, it does not. The Constitution's clause on Copyright and patents states:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (Article I, Section 8, Clause 8)

Thus, according to the Constitution, the overriding purpose of the copyright system is to "promote the progress of science and useful arts." In today's terminology we may say that the purpose is to lead to maximum productivity and innovation.

This is exactly correct, as we've discussed numerous times before. This is not to say that one of the results of copyright law is to compensate the creator. That's clearly a large part of how the law is supposed to function. The thinking behind this is not too complicated: if we can ensure greater compensation through limiting competition and supply via artificial monopolies, it drives up the price of those goods, leading to greater income.

But that theory includes several assumptions which may not be true. Let me present a hypothetical to make the point. I am not saying this is absolutely the case, but let's say we have scenario A and scenario B:

Scenario A
Artist's works are locked up under copyright, but he sells them for $1 per song downloaded.
Fans pay for and download 100 songs.

Scenario B
Artist frees up his work to the public domain, and encourages them to be spread freely.
Thousands of copies of the song are downloaded.
Artist sets up a Kickstarter to fund next batch of songs, and quickly raises $10,000

Again, I'm not saying that this is what happens in all cases. I'm just making this point: I don't believe that a single, sane person would argue that scenario A is better than scenario B. In scenario B the artist has more fans, more ability to make new music and more money. It's a much better position. But that income does not rely on copyright.

And that's the simple point that seems to get lost in this debate. Because copyright exists and is so prominent in the business model of artists, many incorrectly believe that it is the business model for content creators, and there can be no other. But, what we've really done is set up a crutch. Because the government has "picked winners and losers" by backing copyright as the core piece of a business model, most content creators have focused almost exclusively on monetizing via copyright. And thus, they argue, any attempt to change copyright is an attack on their incomes.

But, if we all agree that scenario B is a better scenario for the artist and for the consumer, then we've already shown that copyright, itself, may not be the best tool for artists seeking to make a living. I'm not saying that it absolutely isn't -- but that we have little evidence that copyright is actually the best such tool, and plenty of evidence that it can stifle and limit speech and creativity along the way.

There are many ways to make revenue as an artist. The Future of Music Coalition's Artist Revenue Streams worked out 42 different revenue streams for artists. Certainly, many of them rely on copyright, but a significant number do not. But content creators rarely get the chance to fully explore those other methods, because they're so wed to the idea that copyright is it.

Either way, if the idea is to maximize artist revenue, then we should be looking at what actually does that -- what actually results in greater artist revenue? Because there is no evidence that expanding copyright law seems to have that impact.

So all Khanna and the Republican Study Committee (briefly) were saying, was that the purpose of copyright law is to benefit "the progress of science and the useful arts." Part of that certainly may be to help artists make money, but that is not the ultimate goal, nor would it be reasonable as the ultimate goal. If we want to maximize artist revenue, let's explore that issue, but just assuming that's the goal of copyright is clearly faulty, leading to a very distorted market.

"But, if we all agree that [Mike's fantasy] scenario B..."

You never prove anything with IF, Mike. -- If you're paid by Google to promote it and to lobby as in your SOPA junket, then your remarks anywhere aren't reliable. Just sayin'.

Fundamentals of Rational Copyright Somewhat redundant to clarify related aspects. Don't worry if you can't grasp these all at once: I'll be using magic to post it often.

) Creators inherently have SOLE RIGHT TO COPY their work.

) Creating is and has always been more difficult than copying.

) The special provisions in law for copyright stem from the above 2 facts. It's specific setting out of "intellectual property" rights for creating works given the relative ease of copying.

) Copyright specifies WHO can gain money from the works, AND that no one else is to gain money from them. (For a limited time, but after in public domain, it's still unethical to grift on the work of others; ONLY the cost of reproduction should be charged.)

) Copyright law is indeed exactly to prevent copiers and the general public from copying works (during the limited time). The societal agreement is that only creators can attempt to gain from it during that (limited) period.

) There are NO rights whatsoever granted to or held by copiers. No one's "right to copy" is at any time removed or diminished because it never exists prior to the creation of a work.

) Machines doing the labor of copying doesn't confer any new right to do so.

) Copyright has a worthwhile societal purpose to encourage the creation of various works, even if only for trivial entertainment.

) Even indirect income from in any way providing "for free" the protected work of others is clearly illegal, immoral, and unethical.

) Putting an entire digital movie / music files online for anyone to download is NOT sharing, not fair use, nor fair to its creators; it does remove some degree of potential profit and some degree of actual profit.

) Copying rights are granted by the public for the public good (or was until unilaterally changed by moneyed interests) and we all have a general duty to respect the special provisions made for creators.

) Possession of authorized physical media is license to access the content any number of times (which can be one-at-a-time library use, yet not "public" display). In the absence of physical media, there's no clear right to access content, only perhaps an authorized temporary permission. But at no time does possession of digital data confer a right to reproduce it outside of the terms and conditions as for physical media, no matter how easy it is to do so.

) Emphasizing an aspect of the just above point: digital data is even less "owned" by the purchaser than with physical media, not more.

) When independently rendered, fashion "ideas", "art" in general, "look and feel", jokes, bits of wit, and musical "riffs" are not copyright-able because not significant effort. Don't throw those in to confuse the topic. (Specific clarification for music: you may play "stolen" riffs to parody or add spice, but not use actual "sampled" audio as basis for your main theme.)

) Many persist in using the canard of "copyright can't guarantee income". -- Misleading. The older body of copyright (beginning in the US Constitution) was to guarantee creators a monopoly on the ATTEMPT at income from a given work for a limited time period. No one else has the right to even MAKE such attempt.

) Nothing above is invalidated or weakened by results being imperfect, nor by attempts to indefinitely extend time and scope of copyright: the latter are driven by greed and should of course be resisted, but by more general means.

Re: "But, if we all agree that [Mike's fantasy] scenario B..."

Your premise is flawed. You state that "Creators inherently have SOLE RIGHT TO COPY their work" is a fundamental fact, but provide nothing to back it up. And this is one of the main points under consideration here. Most people--including those who made the laws in question--don't agree with this absolute position. Otherwise, there would be no such thing as fair use laws.

So before you go building a case based on this premise, you need to establish it as fact, not merely assert it. Otherwise, no one will take you seriously.

Re: "But, if we all agree that [Mike's fantasy] scenario B..."

Creators inherently have SOLE RIGHT TO COPY their work

Creators do not inherently have this right. It is a right granted to them by the government, and the government can make exceptions to this right.

The only right creators have inherently is whether they share their creation with the rest of the world or not. Once they do, it's up to the government to decide who has the right to do anything with it, and then only if the people go along with the government's decision.

If anything, the pubic inherently has the right to copy anything that can be copied. That's a far more accurate statement of our rights as human beings.

One thing that really puzzles me in this entire debate are how a few key words are apparently just ignored in the law regarding this.

"To promote the Progress of Science and useful Arts, by securing for LIMITED Times to AUTHORS and INVENTORS the exclusive Right to THEIR respective Writings and Discoveries"

So from my understanding of this ONLY the actual person creating the content SHOULD EVER HOLD COPYRIGHT and then only for LIMITED TIME. If that is the case then automatically at their death the copyright is void. You can't own something past your death.

Re: Re: "But, if we all agree that [Mike's fantasy] scenario B..."

Once they do, it's up to the government to decide who has the right to do anything with it

That is not accurate. That same end could be made via a large scale social contract between the creator and the rest of society. However, since such a large scale social contract is on the verge of impossible for a single person do undertake, we have agreed to let a central body, namely government, to be the arbitrator of that contract.

Unfortunately, the government is no longer an arbitrator and has become a lapdog of special interests.

not a hope in hell! the lack of balls was so obvious when the report and proposals were pulled, it was excruciatingly painful!

'some in Congress realize this is a debate worth having.' but as they're so 'afraid of some industry lobbyists' they ought to simply give up their positions and let someone else take over. perhaps then there will be some serious and sensible changes, all for the better!

Copyright has gotten so out of hand that nothing you hear in your lifetime will be available for you to use afterwards. That's not limited time. In terms of human lifespan, that just as well be forever.

OOTB as usual is talking out his pie hole because he's paid to do so. Most of the time he never reads beyond the headlines before spouting off his nonsense. Takes too much time to do that for a paid shill. It is a blessing that his posts mostly disappear. It's like hearing a kid in kindergarden; the record is broken. It has no depth beyond the repeated track. Honestly, his points are not worth taking up as it's so easy to poke holes in fallacies and flights of fancy.

Re: Re: "But, if we all agree that [Mike's fantasy] scenario B..."

Re: "But, if we all agree that [Mike's fantasy] scenario B..."

"Creators inherently have SOLE RIGHT TO COPY their work."

It might be called "copyright" but your reading into it is wrong. All copyright is/should be is that the creators/inventors have certain exclusive rights. Period. What was added on/built into that was that they had the exclusive right to copy and distribute their works for a limited time.

"Creating is and has always been more difficult than copying."

False. In fact, copying was originally quite tedious and a difficult task. It is only with technological leaps forward that it has become as easy as clicking a button.

"The special provisions in law for copyright stem from the above 2 facts. It's specific setting out of "intellectual property" rights for creating works given the relative ease of copying."

Those "2 facts" are wrong and flawed, especially given the spin you put on both. Which again, is also wrong and flawed.

"Copyright specifies WHO can gain money from the works, AND that no one else is to gain money from them. (For a limited time, but after in public domain, it's still unethical to grift on the work of others; ONLY the cost of reproduction should be charged.) "

Copyright DOES NOT specify who can gain money from the works, nor does it state that no one else is to gain monetarily from them. Again, you're putting your own spin on something that isn't even in copyright.

As for the "unethical" bit, again your point of view. But ethics, like morals, are subjective. So you are attempting to force yours onto others and then claiming it as fact and supporting it with something that isn't in copyright.

"Copyright law is indeed exactly to prevent copiers and the general public from copying works (during the limited time). The societal agreement is that only creators can attempt to gain from it during that (limited) period. "

See previous response about your misunderstanding and misreading into copyright and just what is or isn't allowed. But on this one you're at least semi close to stating something factual. Copyright law is indeed to prevent others from copying. However, the societal agreement is that in exchange for exclusive rights to copy that which is being held exclusively by a creator WILL enter the public domain after set time. (Something that no longer is happening, as such, by the very premise one party to the agreement has already broken the agreement. Which a rational mind would say more than justifies the other side in breaking it as well.)

"There are NO rights whatsoever granted to or held by copiers. No one's "right to copy" is at any time removed or diminished because it never exists prior to the creation of a work."

Wha-? Moron OotB logic, huh? Sorry, but the point of copyright is exclusivity. By allowing one to have the exclusive right to copy and distribution, it is allowed at the expense of others rights to do the same. As such, the rights of others are removed. Very much so. (May I suggest you actually think through your "arguments" and "points" before you hit submit. I only say this because it would do your rants better, as opposed to making them easy to rip apart. Piece by moronic piece.)

"Copyright has a worthwhile societal purpose to encourage the creation of various works, even if only for trivial entertainment."

No, it's worthwhile societal purpose is to add to the public domain. To promote the science and the arts. It's not to encourage the creation of new works. That's something that is allowed by copyright, hence the exclusivity bit (allowing creators to temporarily gain, but in exchange for something).

"Even indirect income from in any way providing "for free" the protected work of others is clearly illegal, immoral, and unethical."

Again, this is you putting your take on something. It in no way is relevant to the article, much less topic at hand. As for illegal, that depends. In some places it isn't. It also depends on the manner in which something is being used. Licenses and so forth. I won't go off with details because they'd fly over your head anyway. As for immoral, again... purely subjective. Quit with this already. Unethical? See previous sentence.

"Putting an entire digital movie / music files online for anyone to download is NOT sharing, not fair use, nor fair to its creators; it does remove some degree of potential profit and some degree of actual profit. "

Actually, it IS sharing. It can be fair use. And it can be fair use to its creators. The details in this case would very much determine any/all of this. As for that latter bit, it may or may not remove. But saying "it does" is making a declarative statement, and one which all present evidence suggest is very much untrue and which no evidence currently supports. (I love how you make things up to suit your argument. You suck so hard it's hilarious. I bet you never were asked to join the debate club, were you? Can't say I blame the debate team. If you were on it they could save every one time by just walking out with a white flag.)

"Copying rights are granted by the public for the public good (or was until unilaterally changed by moneyed interests) and we all have a general duty to respect the special provisions made for creators. "

We may have a general duty to respect said provisions, but respect is earned. If the creators aren't holding up their end of the agreement, then it is a show of disrespect on their part for the public, with whom they have entered into an agreement. As such, by showing clear disrespect and disdain for holding up their end, the creators forfeit their right to ask the public to hold up its end of honoring their exclusive and temporarily limited rights. One good turn deserves another as the expression goes.

"Many persist in using the canard of "copyright can't guarantee income". -- Misleading. The older body of copyright (beginning in the US Constitution) was to guarantee creators a monopoly on the ATTEMPT at income from a given work for a limited time period. No one else has the right to even MAKE such attempt."

It isn't misleading. Because it's true. Copyright DOES NOT guarantee income. As must be restated for your feeble intellect to understand, there is only one thing guaranteed by copyright (as far as to creators). That is the exclusive right to copy. And only for a limited time. Nothing more, nothing less. Nowhere in copyright law does it even mention attempt to generate income from a given work. NOWHERE. Your misinterpretation notwithstanding.

"Nothing above is invalidated or weakened by results being imperfect, nor by attempts to indefinitely extend time and scope of copyright: the latter are driven by greed and should of course be resisted, but by more general means."

Actually, the most important parts ARE invalidated and weakened by attempts to indefinitely extend the time and scope of copyright. By breaking or altering the deal and giving up nothing in return, the deal is null and void. As such, creators basically threw down the gauntlet and now that they're on the receiving end of their own disrespect they want to whine and cry about it.

Don't like how the game is played, play by the rules that were set in the first place. You want to twist the rules to suit your wants/needs, realize the other side can do the same.

Re:

Terry Hart's response is interesting and informative, if misguided (focuses on random quotes, rather than actual analysis -- I could throw back just as many quotes that say the opposite, especially given that many of his quotes are out of context).

But, seriously, the Aistars post is just hilariously badly argued. The idea that the Copyright Alliance blog is "excellent" suggests a definition of "excellent" that is 180 degrees to what most people consider excellent. But that fits, since her explanation is similarly situated to reality.

To promote the progress...

There's a reason it says that and not "to protect the profit", it's up to the author to solve the issue of how to get paid. As was said, there are many ways to generate revenue through art that don't even touch copyright. And it should be up to the artist to figure out which method works the best, in the absence of laws trying to modify reality. If you can't make it without copyright, you can't make it at all.

Re: "But, if we all agree that [Mike's fantasy] scenario B..."

"You never prove anything with IF, Mike. -- If you're paid by Google to promote it and to lobby as in your SOPA junket, then your remarks anywhere aren't reliable. Just sayin'."

Meaningless statement. He pointed out two hypothetical situations, with two different income levels being shown and how the one that doesn't rely on copyright has the greater dollar amount.

"Fundamentals of Rational Copyright Somewhat redundant to clarify related aspects. Don't worry if you can't grasp these all at once: I'll be using magic to post it often. "

You've lost all sense of grammar in that part. Where's the "are" in "somewhat redundant"? And what do you mean by "using magic"? Are you going to "puff the magic dragon" and then post?

") Creators inherently have SOLE RIGHT TO COPY their work."

Wrong. If we take that statement as an absolute, then it ignores fair use.

") Creating is and has always been more difficult than copying. "

Tell me where in copyright law it mentions the amount of effort, then you might have a point there. So what about the difficulty? In fact, the ease of copying nowadays, with literally everyone being able to copy very quickly, only underscores my belief that copyright is archaic and completely unnecessary in the 21st century.

") Copyright specifies WHO can gain money from the works, AND that no one else is to gain money from them. (For a limited time, but after in public domain, it's still unethical to grift on the work of others; ONLY the cost of reproduction should be charged.) "

Copyright law doesn't state who is to gain money from certain works. It outlines who has the legal right to copy. In fact, go here https://en.wikipedia.org/wiki/Copyright_law_of_the_United_States#Exclusive_rights
Nowhere in that list does it explicitly say authors are due a revenue stream. They are given certain rights, that may or may not result in an income.
Also, your code of ethics must be very loose indeed. If it's unethical for me to copy say, a movie released last year, why is it also unethical for me to copy a movie released 30 years ago? Why is it then ethical for me to copy a Fred Astaire movie from the 1930's?

") Copyright law is indeed exactly to prevent copiers and the general public from copying works (during the limited time). The societal agreement is that only creators can attempt to gain from it during that (limited) period. "

The general public are supposed to be the ultimate beneficiaries, not some sort of villain that must be thwarted. The ultimate goal of copyright law is that works fall into the public domain, a status that is now very much in doubt thanks to Life + 70.

") There are NO rights whatsoever granted to or held by copiers. No one's "right to copy" is at any time removed or diminished because it never exists prior to the creation of a work."

My right to copy and your right to copy are held as inalienable rights, part of the right to Free Speech. However, copyright prevents me from making certain speech, simply because someone else said it first a few decades ago. Thus, my right to copy is somehow taken away. When I am no longer at liberty to exercise my rights, I am considered not to have those rights. So which is it? Do I or do I not have the right to copy?

") Copyright has a worthwhile societal purpose to encourage the creation of various works, even if only for trivial entertainment. "

As argued in the article, copyright now no longer fulfils that goal. It is instead used to hinder the creation of new works. Disney mined the public domain to create some of the most well-loved movies of all time. Why is it now illegal for us to mine his movies? How many new Disneys must be silenced so as to protect the revenue stream of one corporation?

") Even indirect income from in any way providing "for free" the protected work of others is clearly illegal, immoral, and unethical. "

Again, with a potshot at Google and cyberlockers. Illegal maybe, but certainly not immoral and certainly not unethical. Morals and ethics are not absolutes and have no place in a debate such as this. I consider copyright law itself to be immoral and unethical, in that it attempts to reward the very few at the expense of the vast majority, and fails at that, but at a great cost.

") Putting an entire digital movie / music files online for anyone to download is NOT sharing, not fair use, nor fair to its creators; it does remove some degree of potential profit and some degree of actual profit. "
How so? What about fair to the people? Why should I care about fairness to someone I've never met? Also, that statement ignores the countless number of times, even when downloaded beforehand, that digital content is still bought. I've done it plenty of times. So have others.

") Copying rights are granted by the public for the public good (or was until unilaterally changed by moneyed interests) and we all have a general duty to respect the special provisions made for creators. "

So...you're agreeing that modern copyright law no longer bears any resemblance to the initial goals it once had, but that somehow we must still respect creators? Respect is a two way street. When Disney et al respects my right to copy, I may respect their wish that I buy the DVD. Respect must be earned, it can be demanded but not forcibly given.

") Possession of authorized physical media is license to access the content any number of times (which can be one-at-a-time library use, yet not "public" display). In the absence of physical media, there's no clear right to access content, only perhaps an authorized temporary permission. But at no time does possession of digital data confer a right to reproduce it outside of the terms and conditions as for physical media, no matter how easy it is to do so. "

Copyright law distorts property ownership laws into a weird shape. I own the plastic disc but not what's written on it? I own the page but not the ink on it? If I pay for a loaf of bread, I pay an agreed upon price that includes the whole thing. At no time have I gone up to a till with a book and been told that I am only purchasing blank paper, with no ownership rights to the ink. If I were being told that, I would then demand a lower price, since the book is now so much less valuable to me. Also, the T&C are in my humble opinion, complete and utter horse-crap, given that we only ever see them AFTER the purchase (good luck finding a store that will accept returns of opened/used digital media).

") Emphasizing an aspect of the just above point: digital data is even less "owned" by the purchaser than with physical media, not more."

Digital data is nothing less than a sequence of 1's and 0's on my hard drive. Do I or do I not own my hard drive? Thus, I own what's on that hard drive. To say otherwise is to say I don't own the hard drive, which is horse-crap.

") When independently rendered, fashion "ideas", "art" in general, "look and feel", jokes, bits of wit, and musical "riffs" are not copyright-able because not significant effort. Don't throw those in to confuse the topic. (Specific clarification for music: you may play "stolen" riffs to parody or add spice, but not use actual "sampled" audio as basis for your main theme.) "

The amount of effort going into a work doesn't count in copyright law, only the creative aspects of it, otherwise the law would state that someone who took 20 minutes to set up the perfect shot for a photograph would get a copyright, versus someone who only spent 10 minutes (or some other absurdity).
Also, what's a "stolen" riff? How can you steal a riff? And why can't I use sampled audio? Saying for me to record my own piece is saying that I must do this extra step, even if the piece of music I record is identical to the original, simply because...well, there is no reason, as far as I can see. It's adding an extra step where it's completely unnecessary. What if I'm composing the perfect piece of music, one that will bring about the Second Coming, but I don't know how to play one of the instruments? Here, copyright law is hindering the creation of art.

") Many persist in using the canard of "copyright can't guarantee income". -- Misleading. The older body of copyright (beginning in the US Constitution) was to guarantee creators a monopoly on the ATTEMPT at income from a given work for a limited time period. No one else has the right to even MAKE such attempt. "

Copyright law by its very nature disallows any other attempt at a revenue stream from any other method. If we take Mike's two hypothetical scenarios from the article, a musician can't claim copyright over a piece of music he releases in Scenario B. The two can't co-exist. Also, thank you for admitting it's a government-granted monopoly, a situation that doesn't work in capitalism.

") Nothing above is invalidated or weakened by results being imperfect, nor by attempts to indefinitely extend time and scope of copyright: the latter are driven by greed and should of course be resisted, but by more general means."

Well, duh, copyright law isn't weakened by extended durations and scope, it's strengthened. The true greedy ones are those who lust after rents from the public from works that ought to be in the public domain (Disney et al). You are talking of fighting the general public. Thanks for admitting that.

Lastly...

Do you still want us to ignore you? I remember you one time saying that. I just didn't respect your wishes this time because quite frankly, you don't deserve my respect. At all.

The talking points were exactly what one should expect from the party that claims to exalt the original meaning of the Constitution. The retraction was exactly what one does in fact expect from the party of opportunistic pandering to moneyed interests. (Not to say the Republicans are the only party that fits the second bill. Hint: the other's name rhymes with "Democrats.")

Copyright law should be subject to strict scrutiny as a restriction on speech... because that's exactly what it is. That fact that the Constitution expressly permits Congress to pass a copyright law shouldn't obscure that basic fact. (So, yes - to forestall the obvious objection - I'm saying the Supreme Court has it wrong.)

As presently constituted, copyright law flunks that basic test. Strict scrutiny requires three things: the law must be (1) narrowly tailored (2) to serve a compelling government interest, and (3) must be the least restrictive means that will achieve that interest. The Constitution explicitly identifies one (and only one) compelling government interest: "To promote the Progress of Science and useful Arts..." As a matter of First Amendment law, I see no room for any other supposed "interest" that copyright law may legitimately serve. Certainly not providing a living for authors, as such.

It's clear that modern copyright law has wandered very far from being the "least restrictive means" to promote the progress of "Science" -- its only legitimate goal. As for being "narrowly tailored" and the "least restrictive means" ... anyone have an opinion on that?

Re: Re:

Can you be more specific? What in particular did Hart get wrong? Aisters just summarized the other post that I linked to, which is from Professor Mark Schultz. Rather than misidentifying the person making the points, and giving the incredibly general and conclusory statement that it is "just hilariously badly argued," why not give specific criticism? What about the professor's points, specifically, is wrong? And seriously, what's the point of the childish debate over whether that blog is excellent? Why not actually discuss the issues in a productive way for once?

thanks to copying- we have rare Cream

as i was trying to read out_of_the_blue's comment there was a promo played on BBC Radio 6 for 'Listeners Archive - Cream live at the Albert Hall'. So, thanks to illegal recording of live broadcasts we can hear it again. How does that go down with ootb?

The US Constitution is not the root of it.

The reality is that, in general, the framers of the constitution were not much bothered by issues like copyright. At the time it would not have seemd particularly important since it directly affected so few people. Consequently the constitutional clause is not particularly original or thought through.

It borrows heavily from the language that has been used around 100 years earlier to justify the statute of Anne.

"Behind Parliament's endorsement of the new legislation lay a more immediate, novel and compelling rationale. This Act was not primarily concerned with securing the position of the booksellers, nor with guarding against their monopolistic control of the press, although it provided an opportunity for addressing both of these issues. Instead, this Act was primarily concerned with the continued production of books. Regardless of the fact that the booksellers might have made much of the rights and deserving nature of the author in their arguments for protection, Parliament focused upon the social contribution the author could make in the encouragement and advancement of learning. It made good sense to make some provision for writers, and inevitably booksellers, to ensure a continued production of intelligible literature. The central plank of the 1710 Act was then, and remains, a cultural quid pro quo. Parliament, to encourage "learned Men to compose and write useful Books", provided a guaranteed, if finite, right to print and reprint those works so composed. The legislators were not concerned with the recognition of any pre-existing authorial right, nor were they solely interested in the regulation of the bookseller's market. Rather, they secured the continued production of useful books through the striking of a culturally significant societal bargain, a trade-off involving, not the bookseller and censorial state, but the author, the bookseller and the reading public. It was the free market of ideas, not the marketplace of the bookseller, which provided the central focus for the Statute of Anne."

Now the Stationers certainly raised all the arguments for a "natural copyright" but that was not what they got.

"The stationers began by stressing the two main benefits to a well regulated press. The first, they argued lay in the "advancement of wholesome knowledge". In this regard, they continued, that "[t]he main care is to appoint severe Examiners for the licensing of things profitable, and suppressing of things harmfull"; where printing suffers by the neglect of government they warned that "errors and heresies abound"."

The problem with looking at the US constitution is that there is a lack of evidence. However if you accept that the US constitution (in respect of copyright) was effectively copied from the UK then it is sensible to look at the UK - where there is more evidence stretching over a longer period.

Re: Re: "But, if we all agree that [Mike's fantasy] scenario B..."

Very nice debunking of Blues comment. I do however have on little bone to pick:

No, it's worthwhile societal purpose is to add to the public domain. To promote the science and the arts. It's not to encourage the creation of new works.

I'm not sure I agree 100% with this. In my view the "To promote" part would include encouraging the creation of new works.

When copyright was actually for a "limited time" I believe it encouraged the creation of new works a lot better than now. With copyright terms effectively "into perpetuity" I feel it encourages resting upon your laurels (and your children also resting upon your laurels) more than anything else.

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The real purpose of copyright when it was created in the modern form was to grant to authors a right they could transfer to the publishers for some monetary consideration. The debate about the statute of Anne was as subject to spin as any modern debate, so talk about authors right were an excuse to effectively give the stationers company control over the production and selling of books.
Not that in tyhe early history of publishing in the USA, british authors received more money from their American publishers, than their British publishers despite the fact that the American publishers wre not required to honour British copyright. They could have waited and obtained a copy of the British edition to copy and print in America, but found it worth while to pay the author to get early and sole access to the manuscript so that they were selling before their competition could get a copy to copy.

Re: Re: Re: "But, if we all agree that [Mike's fantasy] scenario B..."

Ah yes, very true. If I could edit I'd fix that. Sorry, I was actually in the middle of eating the company pre-Thanksgiving BBQ lunch we were having (but at my desk, as I had to keep working) and Blue's comment was so full of stupidity that it kinda got on my nerves that I fully didn't think that part through.

But yes, the point of promoting the science and the arts is to encourage the creation of new works, with the benefit that they would go into the public domain eventually. Which is a win for everyone eventually.

As for what you said about the comparison between then and now, I agree. With a limited time to benefit and exclusivity the creators would have to keep on creating in order to keep benefiting in some way. Now though, they can literally create one song, one character, one film/show/etc and reap near indefinite benefits for the remainder of their lives. Which is exactly as you said, it allows them to rest on their laurels (and their children to do the same and their grandchildren and so on and so forth).

Re: Re: Re: "But, if we all agree that [Mike's fantasy] scenario B..."

I am of the opinion that copyright doesn't promote new works. Logically, if you want new works, you build it off of what came before. Copyright doesn't do that. It gives you an exclusive market for a good even though that artificial market may be worse than the regular market.

For example, America ignored foreign copyright until the Berne convention. We had a flourishing book industry but for brits or Germans, they were angry at the loss of sales. Yet, Americans flourished not only from publishing houses creating books, but also authors collected money from touring.

Practically every industry you could imagine was better off from the move away from mercantilism.

If the USA ever Benefited from any type of monopoly, I have yet to read about it from the revolution against the East India Company, to the Robber Barons, to Walmart in the warehousing industry, monopolies have never worked to benefit a nation.

Elephant in the room

The question that has to be asked is:-
Is copyright worth the destruction of the Internet and the Installation of spyware on all personal computers?
That is the way that the legacy copyright holders are going, along with Apple and Micro$oft in their controlled appstores. The preservation of strong copyright is not compatible with the the current Internet.

Re: Re: "But, if we all agree that [Mike's fantasy] scenario B..."

Ahh...You're operating under the belief that ootb and his ilk agree with fair use doctrine--they do not. They believe that all uses should be controlled and monetized by the creator. This is one of the biggest fights we have been having over copyright lately--what can the public do with copyrighted material without the permission of the rights holder.

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Mr Hart espouses that copyright is a "property right" and yet fails to account for the act of the government ultimately revoking that purported right. One could argue that the 5th Amendment authorizes such seizure of a citizen's "property", but only after providing "just compensation" to the owner. What compensation is offered to authors and artists when the copyright term expires and the government seizes their "property"?

I would also suggest it is "badly argued" to extol the philosophical views on property held by statesmen such as James Madison -- owner of hundreds of slaves whom he considered "property" -- and Aedanus Burke, who refused to ratify the Constitution and threatened to end the union if the slave trade were prohibited by Congress. While Mr Burke was not to my knowledge an actual slave owner, he proclaimed himself "an advocate of the property, the order, and the tranquility" that slavery established.

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You've got the just compensation calculus exactly backwards. Regardless, even Mike agrees that copyright is property under the Fifth Amendment. Just ask him. He won't give you an honest answer, but ask anyway.

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Exactly. Mike has made it abundantly clear that he's the first to whine about not being "invited to the table," but also the first to prove that he has no intention of discussing the issues substantively should he get there. No one hates to talk about his personal beliefs more than Mike.

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The purpose of copyright (1709 Statute of Anne - copied by Madison 1790) is to enable the state to obtain effective control over a press consequently beholden by the grant of lucrative reproduction monopolies.

Laws that secure the people's natural rights (against murder, burglary, fraud, kidnapping, etc.) need no pretext. Grants of monopoly, being abridgements of liberty, need a bit of finessing, e.g. "You can't retell folktales, sing folksongs, or even copy the books of folklore any more, because it'll be better for society this way, trust us".

Just as correlation does not imply causation, so pretext does not imply purpose or consequence. If the purpose is profit and control, and the consequence is low diversity populist pulp and kids in prison, only the devoutly gullible will insist that the people's learning has nevertheless been encouraged.

Trouble is, people cannot afford to confront the terrifying truth that copyright never had a philanthropic purpose.

Copright MUST have been legislated for mankind's benefit - ipso facto, the copyright reformist's mission is to try and find a mythical holy grail form of copyright that IS beneficial to mankind.

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No, I don't think so. Certainly, if you're going to grant a right, it should go to the most appropriate party, which would be the author. But there's no reason to prohibit the author from doing as he sees fit after that. Plus, even the 1790 Act expected that authors would assign their rights to others or that they could otherwise be transferred. IIRC so did the Statute of Anne.

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What compensation is offered to authors and artists when the copyright term expires and the government seizes their "property"?

The IP is the price for the monopoly they were given, so that thinking is, indeed, backwards. You're looking as if the monopoly they were assured is something that is just given for free, but it isn't.

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From Schultz: "Copyright is Property, not a Monopoly or Subsidy".

Does copyright serve to increase the profits of the producer, by raising prices through restricting supply? Yes, that is its essential, deliberate, acknowledged mechanism. One can conjure with the niceties of technical definitions, but what is actually happening is plain to see. It might not be a normal duck, but it certainly quacks.

why do I think that half the arguments from the copyright maximalists boil down to, we need copyright because someone will take someone else's work, then slap their name on it, and then sell it as their own leaving the original with no monies?

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To be "exactly backwards" would mean that you expect copyright owners to compensate the government for the privilege of placing their works in the public domain. Perhaps you could rephrase your criticism in a more exegetical manner?

I think for these philosophical arguments to be persuasive, they need to be augmented with a concise list of innovations that were threatened or outright hindered by copyright. It would also help to have examples of creativity flourishing in venues where this no copyright, or where copyright is not respected. The RSC policy brief made a stab in this direction, but IMHO focused too much on one rather weak example (the DJ industry). There are many more and better examples, with court cases and numbers for support.

What cultural advantages? How would we know the story of Beowulf or Shakespeare without people spreading the stories?

Yes, plenty of examples of great works without copyright. On the other hand, plenty of examples of great works with copyright. I'm not 100% convinced that copyright does actually encourage new works. Nor am I 100% convinced it doesn't.

I think the true answer is somewhere in between. What I do know is that copyright has been taken a bit to far in the wrong direction and what we really need more than anything else is a course correction before we run aground on the rocks.

Re: Re: "But, if we all agree that [Mike's fantasy] scenario B..."

>>") Creators inherently have SOLE RIGHT TO COPY their work."
>
> Wrong. If we take that statement as an absolute, then it ignores fair use.

Worse than that. ALL MODERN TECH GRINDS TO A HALT.

The nature of computing technology is such that you can't avoid copying something multiple times in order to use it. If you extend artistic megalomania to it's extreme then all modern tech for consuming purchased entertainments become unusable.

The "artists" simply can't make any money in that kind of situation.

This is the problem with letting media moguls or even artists set policy. They would happily saw off their own leg given the chance because they have no clue and they don't want one either. They're even proud to have no clue.

Re: The US Constitution is not the root of it.

> The reality is that, in general, the framers of the constitution were not much bothered by issues like copyright. At the time it would not have seemd particularly important since it directly affected so few people.

Are you kidding? The founding fathers were all businessmen. They were kind of people that would be DIRECTLY impacted by any sort of restriction on printing because some of them WERE printers.

The most notable example is that guy on the $100 bill.

The idea that copyrights are an obscure thing that didn't bother disciples of the enlightenment is just specious nonsense simply designed to take advantage of those completely unfamiliar with history.

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Terry Hart's response is interesting and informative, if misguided (focuses on random quotes, rather than actual analysis -- I could throw back just as many quotes that say the opposite, especially given that many of his quotes are out of context).

The guy who wrote "The Sky is Rising"--a completely un-sourced paper, keep in mind--is playing the "out of context" card?! Rich.

I mean, I'm sure the "Sky is Rising" was probably fact-checked by at least two London residents, but I'm not sure that passes rigorous standards. (and apparently, according to a later comment, it was funded by Google?)

I mean, I'm an asshole and spend a lot of my days apologizing for bad behavior, but how do you sleep at night?